How to get the most out of your right of way - Gore v Naheed & Ahmed [2017]

In order to understand how the recent decision in Gore v Naheed & Ahmed [2017] may assist landowners, we need to have a look at the established law governing rights of way and “additional land” (i.e. land which has been acquired subsequently by the landowner, which was not part of the original grant of the right of way).

The “Rule” in Harris v Flower

Since the case of Harris v Flower in 1904 the general rule governing rights of way and additional land was that, if you owned a plot of land which benefitted from a right of way, you could not subsequently acquire a further plot of neighbouring land, and use the right of way to access this additional land.

This was a relatively straightforward position, although it left landowners with very little flexibility.

Subsequent case law

Various cases since Harris v Flower have muddied the waters. The Court has found in some cases that the use of a right of way to access additional land was permitted, as long as the use of that additional land was “ancillary” to the use of the original land (which did benefit from the right of way). Examples of ancillary use may include parking, or the erection of outbuildings which service the main site.

In other cases, even where the use of additional land appeared ancillary, the Court declined to grant access.

The decision in Gore v Naheed & Ahmed

This year, the case of Gore v Naheed & Ahmed has helped to clarify the position, and has set out some rules which govern when additional land may be accessed using an existing right of way. There are two stages to this test:

The use of the additional land must be ancillary to the use of the original land; and

The wording of the original grant of the right of way must provide for ancillary use (i.e. by including wording such as “a right of access for all purposes in connection with the use of Plot A”).

Opportunities

This might present opportunities for landowners where access is only via a right of way and they would wish to acquire adjoining land.

Landowners will need to pay careful attention to the wording of the original grant, though, and will need to ensure that their use of the additional land is ancillary to the use of their original land.

For further information, please contact Bill Trow on 01603 580039 or by email to [javascript protected email address]